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Wednesday, November 23, 2011

Nov 22: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 09-36100,10-35043,10-35052,10-35053, and10-35054.Appealed from the United States District Court for the District of Montana. In this partially split decision, the Appeals Court provides extensive background and explains, this case involves one of the American West's most iconic wild animals in one of its most iconic landscapes. The grizzly bear (Ursus arctos horribilis) -- so named for the gray-tipped hairs that give it a 'grizzled' appearance -- is both revered and feared as a symbol of wildness, independence, and massive strength. But while grizzlies may inspire some sense of human vulnerability, history has shown that it is the bears who have often been the more vulnerable ones. During the nineteenth and early twentieth centuries, widespread hunting, trapping, poisoning, and habitat destruction associated with American expansion decimated the grizzly population in the West and relegated the bears to increasingly remote and rugged terrain. Since then, their survival has depended both on their own ability to adapt to their surroundings and on human ability to adapt to their presence. These seemingly irreconcilable tensions have come to a head before us in this appeal.

The Yellowstone region of northwestern Wyoming, southern Montana, and northeastern Idaho is home to a grizzly population, two popular national parks -- Yellowstone and Grand Teton -- and a network of rural communities built on industries such as natural resource extraction, ranching, agriculture, and tourism. As such, it has served as a kind of living laboratory for the coexistence of people and grizzlies in close proximity. For much of the twentieth century, Yellowstone National Park's open-pit garbage dumps provided a reliable food source for the bears as well as a convenient bear-viewing opportunity for tourists. After the dumps were closed in the early 1970s due to concerns about encouraging the bears' attraction to human foods, however, grizzly mortality rates skyrocketed. By 1975 the grizzly population decline at Yellowstone and elsewhere prompted the U.S. Fish and Wildlife Service (the "Service") to list the grizzly as "threatened" in the lower 48 states under the Endangered Species Act (ESA).

Since then, the Yellowstone grizzly population has rebounded, as scientists, conservationists and land managers have made unprecedented efforts to study the bear and to change those human attitudes and behaviors that unnecessarily threaten it. These efforts, spearheaded by the Service's Grizzly Bear Recovery Coordinator Dr. Christopher Servheen, culminated in the "Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area" (the Strategy), an impressive inter-agency, multi-state cooperative blueprint for long-term protection and management of a sustainable grizzly population. Interagency Conservation Strategy Team, Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area (Mar. 2007). Shortly after the Strategy's finalization, the Service removed the Yellowstone grizzly from the threatened species list.

The majority Appeals Court indicates, "The Service's delisting decision, the subject of this appeal, raises a host of scientific, political, and philosophical questions regarding the complex relationship between grizzlies and people in the Yellowstone region. We emphasize at the outset that those are not the questions that we grapple with here. We, as judges, do not purport to resolve scientific uncertainties or ascertain policy preferences. We address only those issues we are expressly called upon to decide pertaining to the legality of the Service's delisting decision: first, whether the Service rationally supported its conclusion that a projected decline in whitebark pine, a key food source for the bears, does not threaten the Yellowstone grizzly population; and second, whether the Service rationally supported its conclusion that adequate regulatory mechanisms are in place to maintain a recovered Yellowstone grizzly population without the ESA's staunch protections.

As to the first issue, we affirm the district court's ruling that the Service failed to articulate a rational connection between the data in the record and its determination that whitebark pine declines were not a threat to the Yellowstone grizzly, given the lack of data indicating grizzly population stability in the face of such declines, and the substantial data indicating a direct correlation between whitebark pine seed availability and grizzly survival and reproduction. As to the second issue, we reverse the district court and hold that the Service's determination regarding the adequacy of existing regulatory mechanisms was reasonable."

Following its analysis, the majority Appeals Court concludes, "We affirm the district court's grant of summary judgment in favor of Greater Yellowstone Coalition on the issue of whether the Service rationally supported its determination that potential whitebark pine declines did not threaten the Yellowstone grizzly bear. This is sufficient to affirm the district court's judgment vacating the Rule. However, we reverse the district court's grant of summary judgment in favor of Greater Yellowstone Coalition as to the Service's determination that existing regulatory mechanisms are adequate to protect a recovered Yellowstone grizzly population, and we direct the district court to enter summary judgment in favor of the governmental Appellants on that issue. We remand to the district court for further proceedings consistent with this Opinion. Affirmed in part; reversed and remanded in part.

In a partial dissent, one of the Justices said, "I agree with the majority that the U.S. Fish and Wildlife Service (the Service) did not, in its delisting rule,articulate a rational connection between the record data and its determination that whitebark pine declines were not likely to threaten the Yellowstone grizzly bear. Unlike the majority, I would hold that the agency also erred in concluding the Yellowstone grizzly is not threatened by 'the inadequacy of regulatory mechanisms.' Therefore, I would affirm the district court's decision in its entirety."

In a release, the Natural Resources Defense County (NRDC) emphasized that the Court of Appeals panel "unanimously agreed that one of the grizzly's key food sources, the whitebark pine, has become so ravaged by climate change that the bears' future remains undeniably threatened." Louisa Willcox, senior wildlife advocate for NRDC said, "Grizzlies are still fighting for their survival in Yellowstone. Grizzly bears have made great progress in the Greater Yellowstone Ecosystem, but they are still very vulnerable, and we must maintain the protections that have brought the bears back from the brink of extinction. Since one of their key food sources is disappearing in Yellowstone, we must develop a long-term plan to help the bear adapt to the results of climate change on their habitat."

NRDC explains that, "Numerous studies have shown a clear correlation between the abundance of whitebark pine cone crops and human-bear conflicts. In years with large cone crops, the bears forage at higher elevation, far from high densities of people. When cones are scarce, the bears move closer to places where more people are. While the bears are omnivores, the pine nuts offer a high calorie food source at a time when little else is available of similar nutritional value. Many researchers have expressed concern over the impact this will have on the future of the grizzly bear population, and the animals' movements in search of new food sources, in the Greater Yellowstone Ecosystem. Recent NRDC/Forest Service research has shown that more than 80% of the whitebark pine forests in the Greater Yellowstone Ecosystem are now dead or dying due to a mountain pine beetle infestation brought on by warming temperatures."

Access the complete opinion and partial dissent (click here). Access the Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area(click here). Access a release from NRDC with links to related information resources (click here). [#Wildlife, #CA9]

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